Ford Claims Ownership Of Your Pictures

Mike Rogers writes "In a move that can only be described as 'Copyright Insanity', Ford Motor Company now claims that they hold the rights to any image of a Ford vehicle, even if it's a picture you took of your own car. The Black Mustang Club wanted to put together a calendar featuring member's cars and print it through CafePress, but an attorney from Ford nixed the project, stating that the calendar pics and 'anything with one of (member's) cars in it infringes on Ford's trademarks which include the use of images of their vehicles.' Does Ford have the right to prevent you from printing images of a car you own?"

Comments

Free Marketing

[truthsearch]

And they wonder why their stock is in the toilet. They're trying to stop free marketing of their products. How dumb is that?

This is about Trademarks, not Patents or Copyright

[Grond]

Ford is making a valid trademark claim, not a patent or copyright claim as the summary, tags, and category would suggest. Ford does not claim to own the pictures, and it is certainly not making a patent claim. What Ford is doing is claiming trademark and trade dress rights in its name, logo, and the stylistic features of its vehicles. Ford is alleging that the Club's calendar trades on the good will that people associate with the Ford name, logo, etc, which is not allowed under state and federal trademark laws.

Furthermore, trademark law requires trademark owners to respond to such acts of potential trademark infringement. If they do not so act, then later infringers may point to the inaction and claim that Ford has abandoned their trademark. Note that this is unlike copyright and patents, which give the rightsholder more discretion in pursuing individual cases.

None of this is to say that this is a good business decision. In its current financial state, Ford should be working with its few remaining fans to produce properly licensed calendars, shirts, etc that maintain Ford's intellectual property rights. That way, everybody wins. This sort of knee-jerk "shut 'em down" response does both the company and its fans a disservice in the long run.

An answer.

[DaveV1.0]

The Black Mustang Club wanted to put together a calendar featuring member's cars and print it through CafePress, but an attorney from Ford nixed the project, stating that the calendar pics and 'anything with one of (member's) cars in it infringes on Ford's trademarks which include the use of images of their vehicles.' Does Ford have the right to prevent you from printing images of a car you own?"

This is a trademark vs copyright issue. The question asked is a red herring. The actual question is "Does Ford have the right to block one from selling, for a profit, an image that includes their trademark?"

The answer is "Yes, they do have that right. They have to protect their trademark or they lose it."

Re:EULA

[MightyMartian]

And thus yet another American industry is suing itself into extinction.

I think what the United States needs right about now is a virus that kills about 80% of all litigators. You still need a few for legitimate, rational affairs, but it's clear that American civilization is going to be crushed under the weight of sheer greed, stupidity and self-destructive self-interest.

Who cares about a typo when the HEADLINE is wrong?

[raehl]

Ford is *NOT* claiming they own anyone's pictures. What Ford is objecting to is taking pictures of their cars, putting them in a calendar, and then marketing and selling a calendar of FORD cars.

It's a bit of a grey area, but I can't say I see Ford being outside the realm of reasonableness here.

Re:Ford's response

[kebes]

Ford's letter is quite well-written and even includes answers to genuine questions. However I think they are over-reaching beyond what the law allows. In particular, they claim:

"It is also not sufficient for a business to state that it is not affiliated with Ford but continue to use Ford trademarks without permission. The business is still misappropriating the goodwill and reputation developed by Ford, and attempting to capitalize on or profit from Ford's goodwill and reputation. Even with the best of intentions, unauthorized use of another company's trademark is against the law."

IANAL, but my understanding of trademarks was that "likelihood of confusion" really was the central criterion. That is, you can indeed captialize on someone's else's reputation (e.g. you can publicly say "Ford company purchased product XYZ!" if that happens to be true), as long as you do not claim official endorsement. If you make it sufficiently clear that you are not affiliated with Ford, then you are not infringing their trademark. I can use the word "Ford" and I can use the Ford logo, as long as it is for legitimate purposes and there is no consumer confusion (e.g. in commentary, parody, etc.).

The use of wording like "depictions or photographs of Ford's distinctively shaped vehicles" (emphasis added) is similarly over-reaching. By that rationale, every product is distinctive and thus cannot be used in a commercial image.

In any case, I don't think trademark law was intended to provide the blanket power that Ford is grasping for (where they inherently own all commercial endeavors that happen to include a Ford product somewhere).

Re:EULA

[mmurphy000]

The original purpose of trademarks was for consumer protection. Specifically, it was to prevent consumers from being confused when buying products and services, so when they see a "Ford" branded car that they know it came from the Ford Motor Company.

That's why, for example, there is still a Domino's Pizza and a Domino's Sugar. Two firms independently have trademarks on "Domino's", but they're on two separate products (pizza and sugar). Consumers are unlikely to mistake a large pepperoni pizza for a pound of sugar, and vice versa.

If this club were making its own cars and trying to brand those as Ford using the Ford logo, or if the club were making its own cars and constructing them in the likeness of a Ford model, then trademark protection has merit — we don't want consumers mistaking Fords and pseudo-Fords. However, in this case, the club is selling a calendar. Ford is not in the calendar-making business, and it is difficult to imagine that a consumer will somehow mistake a calendar and a car.

people own the *cars*, too, and their pics

[postbigbang]

It's unbridled hubris. Out of control brand extension.

These cars aren't copyrighted. They may contain patents, but the image of them doesn't violate a patent, as images can't be patented. This is not a grey area in the copyright law.

They are being totally unreasonable here. I'm reposting my own Ford pics on my sight the very next thing I do. I eagerly await a DCMA take-down message, for with it, gives me the federal nexus to demonstrate my injury to a federal judge. What hubris.

Re:people own the *cars*, too, and their pics

[Pluvius]

These cars aren't copyrighted. They may contain patents, but the image of them doesn't violate a patent, as images can't be patented. This is not a grey area in the copyright law.

There are three main types of intellectual property. You forgot the one that's relevant to this case.

Rob

Re:people own the *cars*, too, and their pics

[Anonymous Coward]

If they didn't, they'd run the risk of losing their trademark protection, which would be far worse.

So give them a free license for it instead of alienating them. Then the illusion of trademark protection remains and the Mustang fans get to publish a calendar.

YANAL

[jgoemat]

This is a trademark vs copyright issue. The question asked is a red herring. The actual question is "Does Ford have the right to block one from selling, for a profit, an image that includes their trademark?"

The answer is "Yes, they do have that right. They have to protect their trademark or they lose it."

This is a misconception. They do have the right to protect their trademark and they say the logo of the group is too similar to their trademark. Trademark is not however a right equivalent to copyright. The purpose of a trademark is to distinguish the products of an individual or business from others. It does not grant a copyright interest in pictures taken of the products, even if they include the trademark on them. These are the products of the company that bear the trademark, it is not confusing in the least. Read this odd case about the Rock 'n Roll Hall of Fame which trademarked their building design and the photographer that sold a poster of the building. The appeals court specifically noted this:

It is well established that "[t]here is no such thing as property in a trademark except as a right appurtenant to an established business or trade in connection with which the mark is employed." United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 97 (1918).

When we view the photograph in Gentile's poster, we do not readily recognize the design of the Museum's building as an indicator of source or sponsorship. What we see, rather, is a photograph of an accessible, well-known, public landmark. Stated somewhat differently, in Gentile's poster, the Museum's building strikes us not as a separate and distinct mark on the good, but, rather, as the good itself.

So the trademark is protected only so far as it is used as an indicator of the source or sponsorship of the product. It is completely legal to take photographs of trademarked goods and to sell them. Andy Warhol's paintings anyone?

Thus without reading the complaint itself and the reasons Ford has we are left with only two conclusions. 1) they are completely brainlessly trying to infringe on the rights of the motor club 2) there is something more to the case of the mark of the club that is used to identify the source of the calendar is too similar to Ford's own mark. In the first case the summary is correct and Ford is wrong. In the second case the summary is misleading and Ford might be right.

Nope.

[postbigbang]

If you extend copyright and/or trademark to Ford for let's say, the Mustang, then the theory of estoppel trumps Ford.

Here's why and how:

google image search this term: "ford mustang for sale". Look at the mind-boggling number of hits.

Now tell me the use of a pic of a Mustang in a for-sale ad is different than putting them into a calendar on a website.

It is not. It's an image, used for the gain of the advertiser. In one case, to sell a used or new Mustang. In the other case, to exemplify the characteristics of ownership of the car. No diff. Estoppel says that 80-90 years ago, Ford should have made a claim

Fie.

Re:Nope.

[reebmmm]

Here's how they're different:

On the one hand you are selling the actual good (the car itself) that you legally acquired from Ford under the name that you purchased it. So an ad saying "Buy my Ford Mustang" is safe so long as it's a Ford Mustang. Even taking a picture of the Ford you're selling will likely be safe.

On the other hand, you're selling a different good (a calendar) using the mark owned by Ford.

As I've now said in a bunch of posts, the issues are: 1) was the use of the marks on the calendar a use in commerce; and 2) is the use likely to cause confusion.

The answer to the first question is very clearly yes--they are/were SELLING a calendar by exploiting the the Ford marks. In some sense, it doesn't make sense for them to do it any other way.

The second answer also seems to be likely "yes." A consumer picking up the calendar about Ford Mustangs might think that the goods originated with Ford or someone authorized to use.

Re:Nope.

[postbigbang]

Let's say I go out and buy a Scion xB. It's square boxy vehicle like the Honda Element. Then I fiberglass it up, making it round, but don't take off the xB or Scion logo. It's my addition to the 'work' of that vehicle.

I take a picture of it, like a million modders the world over might do, and post it, because I'm proud of my work. Let's say someone takes notice of it, and wants to include it in their calendar. Think of all the van and old pickup truck modders, the VW modders, and so on. Someone makes a buck from the calendar; after all, calendar makers aren't a not for profit group.

Or let's say I like old Jags and put together an old Jag calendar. Or perhaps a nice picture book of old Jensens, or Harleys or whatever.

It's not up to any of the aforementioned brand/trademark owners to claim anything. They ought to be blessed that we bought their pieces of crap to begin with. Invoking image ownership is a sure ticket to hell. I own the vehicle; I took the photo, and I'll do whatever I want to do with the photo, without the onus of some vendor's spin control hanging over me. It's mine, baby, no one else's.

Should a vendor cite a vendor for infringement of a trademark or marque (think of putting a Bentley grill on a BMW--whoops-- BMW owns Bentley so a Rolls grill on a Subaru) and there might be some contention were it to be problem.... then what of the Rolls grills that were put on VWs as an aftermarket add-on? I see them around now and again.

To reiterate: I own this stuff, and do what I want with it. If someone buys my image, so much the better. That trademark law should extend to contours is hilarious, but probably has been tested by some idiot judge somewhere. That Nike swoosh looks just like a check mark to me. Hmmmmm. These bonds are tenuous at best. Ford overstepped them with a big foot. Oh wait......

Re:EULA

[Sancho]

Consider this whole calendar thing. Of course you can't publish a Ford calendar withour Ford's consent. Right. Luckily, this wasn't a Ford calendar. It was a BMC (Black Mustang Club) calendar.

Confusion in the marketplace is one of the largest driving factors of this sort of copyright infringement. You, like so many, have confused "trademark infringement" with "copyright infringement." Confusion is not an issue with copyright--it's an issue with trademark.

Luckily, trademark is what Ford is talking about, here.

You can't go out, and take photographs of your car, and then publish an ad, a billboard, a newspaper full-page spread, and a television commercial advertising your car as the best/worst. I wouldn't say that without advice from a lawyer. Certainly I can take a picture of something I own and publish it. I can publish that it broke down 3 times in the first month. I can publish lots of things, generally. The question here is largely whether or not the picture of a trademarked object (it strikes me as weird that an object can be trademarked) can be published. It seems reasonable to me that it could be.

You can't pretend, and make people believe, that you are Ford. From what I've seen of the calendar, they weren't trying to.

Similarly, and for the exact same reason, you can't say that all Ford cars break, just because yours did. That's not entirely true. Slander and libel laws are a little bit different for public figures (in the US.) There's a much, much higher burden of proof that there was a reckless disregard for the truth. You also have to convince the judge/jury that the average person would believe that the claims are true. It's not likely that the average person would believe that "All Ford cars break," though this is a bad example anyway because all cars break, eventually. Parts simply wear out.